National Cable & Telecommunications Assn. v. Brand X Internet Services

& TELECOMMUNICATIONS NATIONAL CABLE v. BRAND X INTERNET ASSOCIATION еt al. SERVICES et al. 27, 2005* 29, 2005

No. 04-277. March June Argued Decided *Together with No. Commission Federal Communications al., also the same et al. v. Brand X Internet Services et on certiorari court. Cappuccio

Paul T. cause for argued petitioners No. 04-277. With him on the briefs were Howard J. Symons, Corvo, Tara M. Paul Glist, Seiver, D. David John Goldberg, Mills, E. Brenner, L. Daniel Neal M. Michael Schooler, Weiss, S. Edward J. and Henk Brands.

Deputy Hungar Solicitor General the cause argued federal on No. 04-281. With him the briefs petitioners Attorney Acting Clement, Solicitor General Assistant were Attorney Deputy Pate, Del- General Assistant General Nancy rahim, Feldman, O’Sullivan, A. James Catherine G. Rogovin, Garrison, Schlick, C. Daniel M. John A. Austin C. Armstrong, M. Lewis, M. Nandan Joshi. Jacob and argued respondents in for

Thomas C. the cause Goldstein Amy Howe, both eases. With him on were John the brief Harvey Macdonald, B. Butler, Comstock, W Earl W. Alison Jay L. Reiter, Verschelden, Matthew and Andrew J. Attorney Sorrell, Schwartzman. H. William General Attorney Borsykowsky, General, Vermont, David Assistant respond and Ellen cases for S. LeVine filed a brief in both Kellogg, ents K. A. State Vermont et al. Michael Sean Lev, in both for and G. Harralson filed a brief cases James respondents McBride, Eve BellSouth et al. Andrew G. Reed, Barr, Glover, Klindera P. E. Edward William Michael Shakin, and in both cases for John P Frantz filed a brief respondents Telephone Companies D. et Mark Verizon al. Jeffrey Schneider, A. Goldman, Marc A. Rackow filed and respondent Inc.† MCI, brief both cases for opinion of the delivered Court. Thomas Justice II Title of the Act of 48 Stat. Communications § subjects providers seq., amended, 47 151 U. S. C. et all mandatory servicie]” common- “telecommunications 153(44). § regulation, review, In under carrier the order † Briefs of amici were filed for curiae urging in both cases reversal Boothby L. Colleen and Industry by the Telecommunications Association Brown; Daniel by Andrew M. Washington and Foundation Legal for the Popeo J. and David Price. filed for the of amici curiae

Briefs cases were urging affirmance in both Harvey, by Peter C. Utilities, Attor- Jersey, State of New Board of Public Silkowitz, Attorney Andrea M. Jersey, Gen- ney General of New Assistant General; Sheehan, eral, AARP et al. and Kenneth J. Attorney Deputy Schuster; Stacy Michael Civil Liberties Canan and for the American by Hansen, Stisa Shapiro, Christopher R. A Steven by Union et al. Jennifer Granick, Heins; Regula- Marjorie and for the National Association Ramsay. by James tory Utility Commissioners Bradford 974

Federal Communications Commission concluded that cable that sell broadband Internet service do companies not pro servic[ej” vide “telecommunications as the Communications term, Act defines that and hence are from exempt mandatory common-carrier under Title II. We must regulation decide whether that conclusion is a lawful construction of the Com munications Act under Chevron A. U. S. Inc. v. Natural Re Council, sources Inc., U. (1984), S. 837 and the Defense Act, Administrative Procedure et U. S. C. seq. We hold that it is.

I The traditional means which consumers in the United States access the network of interconnected computers make the Internet connections up through “dial-up” pro- vided over local See facilities. 345 F. 3d telephone 1120, (CA9 2003) (cases In 1123-1124 re Concern- below); Inquiry ing Access and High-Speed Internet Over Cable Other Facilities, (2002) 17 4798, (herein- FCC Red. 9¶ after Declaratory Ruling). connections, these con- Using sumers access the Internet calls with by making computer modems through wires owned local telephone by phone FCC, Verizon Communications Inc. v. See companies. 535 (2002) U. S. 489-490 structure (describing physical of a local Internet telephone exchange). service providers (ISPs), turn, link those calls to the network, Internet connection, but only by providing by also physical offering consumers to translate Internet raw data into in- ability formation both view on their they may personal computers and transmit to other connected to the Internet. computers See In re on Service, Federal-State Joint Board Universal (1998) (hereinafter Univer- 11501, 11531, FCC Red. ¶63 sal Service Huber, or P. M. Report Report); & J. Kellogg, (2d 1999) Thorne, Federal Law ed. Telecommunications (hereinafter 3d, F. Huber); 345 at 1123-1124. Technological wires, limitations local retard the however, telephone at which speed data from Internet may be transmitted users’ connections end connections. through Dial-up dial-up are “narrowband,” known or speed, therefore as slower connections. service, contrast,

“Broadband” Internet transmits data by at much are There two kinds of higher speeds. principal broadband Internet cable service and service: modem Digi- (DSL) tal Subscriber Line service. Cable modem transmits data between the and Internet users’ computers via the network of cable com- television lines owned by id., See at 1124. DSL service panies. provides high-speed access local wires owned local tele- using telephone WorldCom, FCC, Inc. v. phone See 246 F. 3d companies. (CADC 2001) 690, 692 Cable DSL (describing technology). In- companies can either telephone provide companies ternet consumers, access thus ISPs directly acting themselves, can to in- lease their transmission facilities ISPs that then use the facilities con- dependent to provide sumers with Internet access. Other ways transmitting Internet data into high-speed homes, terrestrial- including and satellite-based networks, wireless are also emerging. Ruling Declaratory 6.

II At in these issue cases is classifica- the proper regulatory tion under the Act of cable In- Communications broadband ternet service. The Act, as amended Telecommunica- by 1996, tions Act of 110 56, defines two Stat. categories entities relevant to these cases: regulated telecommunica- tions and carriers The Act information-service providers. carriers, telecommunications but not information- regulates as common carriers. Telecommunications providers, carriers, for reasonable, must and non- charge example, just customers, §§201- rates to C. discriminаtory their U. S. 209, their so other can intercon- systems that carriers design 251(a)(1), § nect with their and networks, communications 254(d). fund, to the federal “universal service” contribute These are but the provisions mandatory, Commission must if forbear from them it determines applying pub- (b). lic 160(a), §§ interest it. requires Information-service contrast, are not to providers, by subject mandatory common-carrier under Title regulation II, though Com- mission has additional jurisdiction impose ob- regulatory its Title under I ligations ancillary jurisdiction regulate interstate and communications, §§ see 151-161. foreign

These two in classifications statutory late originated 1970’s, as the Commission rules to developed regulate data- services offered over processing wires. That re- telephone II” “Computer rules, gime, between distinguished (like service) “basic” service and telephone “enhanced” serv- ice service offered over (computer-processing telephone lines). re In Amendment Section the Commis- 64-702 (Second sion’s Rules and Regulations Computer Inquiry), (1980) (hereinafter. 384, F.C.C. 2d 417-423, ¶¶86-101 Order). II Computer II rules defined Computer both basic and enhanced services reference how the con- sumer the service offered. perceives being

In the Commission defined “basic service” particular, “a transmission over a pure communications capability path that is virtually terms of its interaction with transparent Id., customer information.” at supplied By ¶96. or transmission, “pure” “transparent” Commission meant a communications enabled the consumer to trans- path mit an to another with no ordinary-language message point, information, or of the other computer processing storage than the or needed mes- storage to convert processing into electronic form then back into lan- sage ordinary it guage over the network— purposes transmitting Id., such as via a facsimile. telephone Basic 94-95. service was to common-carrier ¶¶ subject reg- Id., ulation. 114.

“[Ejnhanced service,” however, was service which to act on the “computer used processing applications [were] content, code, and other of the subscriber’s protocol, aspects id., information,” such as voice and data at services, storage (i. e., 420-421, 97, as well as conversion” “protocol ability ¶ to communicate between networks that different employ id., formats), data-transmission con- By ¶99. trast service, to basic the Commission not to decided subject even providers service, enhanced enhanced service offered via transmission wires, to Title II common-carrier regula- Id., tion. at 428-432, The ex- 115-123. Commission ¶¶ it was unwise to plained enhanced service to subject common-carrier regulation given “fast-moving, competi- tive market” in Id., which were 129. offered. they definitions the terms “telecommunications service” and “information service” are established the 1996 Act II basic- and similar to the Computer clas- enhanced-service sifications. “Telecommunications service” —the analog basic service —is “the of telecommunications for a offering fee directly of the facilities used.” public... regardless 153(46). § 47 U. S. C. is “the trans- “Telecommunications” mission, between or user, among points specified by information of the user’s without in the choosing, change form or content of the information as sent and received.” 153(43). § “Telecommunications sub- carrier[s]” —those Title II jected mandatory common-carrier regulation —are defined as of telecommunications services.” “provider^] §153(44). And to en- “information service” —the analog hanced service —is “the offering capability generat- ing, acquiring, storing, transforming, processing, retrieving, information via telecommu- available utilizing, making 153(20). nications . .. .”

In 2000, the initiated a rulemaking Commission September to, other these classifications apply proceeding among things, di- to cable that offer broadband Internet service companies culmi- to consumers. In March rectly rulemaking in the in these nated under review Declaratory Ruling con- Ruling, cases. In the the Commission Declaratory provided by eluded broadband Internet service cable companies is an “information service” but not a “telecommu- subject Act, nications service” under the and therefore not mandatory regulation. sup- to Title II common-carrier In port heavily of this conclusion, the relied on Commission its Report Declaratory Ruling Universal Service See 4821- ¶¶ (citing Report). 36-37 4822, Universal Service The Uni- Report versal Service classified “non-facilities-based” ISPs— they those do not own the transmission facilities use to solely connect the end user to the as information- Internet — providers. Report service See Universal 11533, Service ¶67. companies Unlike ISPs, those cable own the cable they provide lines use to Internet access. Nevertheless, in Declaratory Ruling, the Commission found no basis in statutory treating companies definitions for dif- ferently from single, non-facilities-based Both ISPs: offer “a integrated service that enables the subscriber to utilize Internet access service . . . and to realize the benefits comprehensive a offering.” Declaratory Ruling service ¶38. provides capability Because Internet access a manipulating storing and information, the Commission concluded that it was an information service. Ibid. integrated

The high- nature of Internet access and the speed provide wire used Internet access led the Commis- companies providing sion to conclude that cable Internet ac- providers. cess are not telecommunications conclusion, This logic reasoned, the Commission followed from the of the Uni- Report. Report versal .Service that, had concluded though transport Internet service “involves data elements” provider because “an Internet access must move- enable the computers ment information own between customers’ computers distant with which those inter- customers seek to capabilities act,” it also “offers end users information-service inextricably transport.” intertwined with data Universal Report ¶ Service therefore, 80. were not ISPs, “offering directly public,” ... telecommunications ... telecommuni- were not classified as 153(46), and so properly id., words, 81. In other carriers, cations see mo- that consumers use their cable Commission reasoned such dems information not transmit “transparently,” access. but instead to obtain Internet using telephone, cable com- this same The Commission applied reasoning was access. Its logic broadband Internet panies offering ISPs, cable do that, like non-facilities-based companies user, but to the end telecommunications “offe[r] to end rather telecommunications . . . merely provide us[e] Ruling Declaratory modem users with cable service.” man- 41. the declined apply Commission Though ¶ Title to cable compa- II common-carrier datory regulation I Title nies, it comment on whether under its jurisdic- invited ISPs to offer other tion it should cable require companies Id., at terms. to their facilities on common-carrier access review, for 4839, 72. Numerous judicial parties petitioned cable modem the Commission’s conclusion challenging lot- By judicial service was not telecommunications service. was selected Ninth Circuit the Court of the tery, Appeals as the venue for the challenge. va- in of the part, granted petitions Court Appeals Declaratory Ruling the and remanded

cated part, the In for further proceedings. particular, Commission it con- the to the extent of vacated ruling Court Appeals not service was “telecommunica- cluded that cable modem It held that Act. tions under the Communications service” the Commu- the could not construe Commission permissibly Internet providing nications Act to companies exеmpt 1132. 3d, at II 345 F. service from Title See regulation. that construction of Rather than the permissibility analyzing Chevron, 467 U. S. framework of under the deferential in the its holding however, the Court Appeals grounded Corp. Portland, AT&T 871 decisis effect of F. 3d stare v. 1128-1132. Portland held 2000). (CA9 3d, F. at See serv- service was a “telecommunications that cable modem though reviewing the court in that ice,” case was an ad- proceeding party and the ministrative Commission was not a 3d, F. Nevertheless, to the case. See 216 877-880. Port- holding, Appeals reasoned, land’s overrode Court contrary interpretation reached Commission Declaratory Ruling. See 345 3d, F. 1130-1131. granted important questions

We certiorari settle the (2004). present. cases federal law these 543 U. S. 1018 Ill apply We first consider whether we should Chevron’s interpretation framework to the Commission’s of the term “telecommunications service.” We conclude that we should. We Appeals also conclude that the Court of should have done following contrary same, instead of construction it adopted in Portland.

A ambiguities Chevron, In this Court held that in statutes agency’sjurisdiction within an delegations to administer ‍‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌‍are authority agency statutory gap to fill the in rea- Filling sonable explained, fashion. gaps, these the Court policy agencies involves difficult choices that are better equipped to make than S., courts. 467 U. at If 865-866. a ambiguous, statute is implementing and if agency’s the con- requires struction is reasonable, Chevron a court to federal accept agency’s the construction of the if even the statute, agency’s reading differs from what the court is believes the statutory interpretation. best Id., 843-844, at n. 11. and governs The Chevron framework our review of Com- the Congress delegated mission’s construction. has the to Com- authority mission the to “execute and enforce” Commu- the “prescribe Act, nications and to §151, such and rules regulations may necessary public be in the interest to carry §201(b); prоvisions” Corp. out the Act, of the AT&T (1999). v. Iowa Bd., Utilities 525 U. 366, S. 377-378 These provisions give authority promulgate the Commission the to

981 order the Commission issued the under rules; binding legal and no one review in the of that questions exercise authority; order is the Commission’s See jurisdiction. the within Services, 232, Household Credit Inc. v. 541 U. S. Pfennig, States v. Mead (2004); 218, S. United 238-239 533 U. Corp., Harris 576, v. S. Christensen (2001); 231-234 529 U. County, (2000). in the we the Hence, as we have past, apply 586-588 Chevron the to Commission’s framework interpretation Telecom- Act. See National & Cable Communications Power Assn., Co., munications Inc. v. 327, U. S. 534 Gulf (2002); Verizon, S., 333-339 535 501-502. U. at on conclusion, of the this Some dispute respondents is inconsistent Commission’s ground interpretation this Agency with its We argument. past practice. reject a analyze is not basis for inconsistency declining under the Chevron framework. Un interpretation agency’s for an is, most, reason explained holding inconsistency from be an and change interpretation arbitrary capricious Act. under the Administrative Procedure agency practice States, Inc. v. State Vehicle Assn. United Motor See Mfrs. (1983). Co., Farm Mut. Ins. 46-57 Automobile 29, U. S. For if for a rever the reasons agency explains adequately the whole sal of is not since policy, “change invalidating, of Chevron is to leave the discretion provided point of a statute with the implementing agency.” ambiguities (South N. Dakota), A., Citibank U. S. v. Smiley 186-187 Sullivan, Rust also v. 500 U. S. (1996); see (2002) (Scalia, Walton, Barnhart 212, 226 535 U. S. (1991); v. “An ini in J., in judgment). concurring concurring part carved stone. instantly tial agency interpretation inter consider varying must contrary, On the ... agency its on a continuing and the wisdom of policy pretations Chevron, response basis,” example, supra, in administra circumstances, or a factual change changed concur Farm, J., tions, see State 59 at supra, (Rehnquist, doubt is no why in That in and dissenting ring part part). to itself, in Chevron this Court deferred an interpre- agency a tation that was recent reversal of See 467 agency policy. S., at We no U. 857-858. therefore have conclud- difficulty that Chevron аpplies. ing

B The Court declined to because Chevron Appeals apply it the Commission’s of the Communi- thought interpretation cations Act foreclosed construction of the by conflicting it had at 3d, Act Portland. See 345 F. 1127-1132. adopted con- It based that on the that Portland’s holding assumption Commission’s, struction overrode of whether regardless Portland had held the statute F. to be unambiguous. That 3d, 1131. was incorrect. reasoning A court’s construction of a statute an prior judicial trumps construction otherwise entitled to deference Chevron agency if the court decision only holds that its construction prior follows from the terms the statute and thus unambiguous leaves no room for discretion. This follows agency principle from Chevron itself. Chevron established a “presumption that when it left in a Congress, statute meant for ambiguity an by understood that the implementation agency, ambiguity be would resolved, foremost, first and and agency, (rather courts) desired the than the to what- agency possess ever of discretion the degree allows.” ambiguity Smiley, at 740-741. Yet a to supra, fore- allowing judicial precedent close an from an statute, as agency interpreting ambiguous the Court of it could, assumed allow Appeals would a court’s an interpretation override Chevron’s agency’s. premise is that it is courts, agencies, to fill statutory gaps. S., See U. 11. n. The better rule is hold judicial contained interpretations precedents same if Chevron demanding one standard step applies the court is construction on a blank reviewing agency’s slate: Only judicial statute precedent holding forecloses the interpretation, unambiguously agency’s a fill, to displaces therefore contains no the gap agency construction. conflicting agency It

A anomalous results. rule would contrary produce of an would mean that an whether agency’s interpretation would statute entitled to Chevron deference is ambiguous If the turn issuе: on the order which the interpretations would first, court’s construction came its construction pre- vail, first, con- if came the whereas the agency’s agency’s would deference. Yet whether struction command Chevron to has to an the inter- authority Congress delegated agency in which the a statute on the order does not pret depend The Court and administrative constructions occur. judicial moreover, “lead to of rule, of would the ossification Appeals’ S., at 247 law,” Mead, 533 U. large our portions statutory from dissenting), by precluding agencies revising J., (Scalia, Nei- unwise constructions of statutes. ambiguous judicial ther nor decisis these Chevron the doctrine stare requires results. haphazard an to override

The dissent answers that allowing agency a what court be stat- a believes to the best interpretation ute to execu- by makes decisions reversal “judicial subject J.). It Post, tive at 1016 does officers.” (opinion Scalia, not. as to the teaches a court’s Since Chevron that opinion is best of an an charged statute reading ambiguous agency decision authoritative, with is agency’s administering court does not to from a construe statute differently Instead, court’s was say legally wrong. holding dif- choose a consistent with court’s may, holding, agency authorita- construction, ferent since the remains agency (within reason) statutes. tive of such limits of interpreter In all remains binding other the court’s respects, prior ruling (for which law Chev- example, agency interpretations ron “reversed” has not been precedent inapplicable). by interpretation more than a federal court’s agency, any a “reversed” of a law can be said have been State’s authoritative) state court that a adopts inter- conflicting (yet of state law. pretation

The Court of derived rule from a Appeals contrary mis- taken It read Neal v. of this Court’s reading decisions. States, United 516 U. 284 (1996), S. to establish that a priоr construction of a judicial statute controls an categorically agency’s 3d, construction. contrary 1131-1132; F. see post, Neal es- also at 1016, n. J., 11 (Scalia, dissenting). Neal tablished no such proposition. declined to defer to a construction the adopted United States Com- Sentencing mission that conflicted with one the Court had previously Chapman States, v. United in adopted (1991). 500 U. S. 453 supra, Neal, Chapman, at 290-295. however, had held the relevant statute to be See 500 S.,U. at 463 unambiguous. to the rule of (declining apply lenity statute’s clear given Thus, Neal language). established that a only precedent a holding statute to be forecloses a unambiguous contrary agency construction. That limited accorded with holding this Court’s decisions, prior which had held that a court’s aof interpretation statute an under the doc- trumps agency’s trine of stare decisis if the only court prior “deter- holding mined a statute’s clear Maislin Industries, S., U meaning.” Primary Inc. v. Steel, Inc., 497 (1990) (em- U. S. Lechmere, NLRB, Inc. v. phasis added); see also 502 U. S. (1992). 536-537 Those decisions allow a court’s prior of a interpretation statute to override an agency’s interpre- tation if the only relevant court decision held the statute unambiguous. this

Against background, Court of erred Appeals Chevron refusing apply to the Commission’s interpreta- tion of the definition of “telecommunications service,” 153(46). U. S. C. Portland held only Its decision in prior the best 153(46) §of reading was that cable modem serv- ice was a service,” “telecommunications it that was the only permissible of the statute. See 216 at reading 3d, F. in Portland held 877-880. Nothing the Communica- tions Act cable Internet unambiguously required treating providers Instead, as telecommunications carriers. court noted it that was “not with a case involving presented deference to an potential statutory administrative agency’s doctrine,” id., the Chevron construction at 876; pursuant (such and the court invoked other no rule construction the rule of it tо conclude that statute lenity) requiring was its reach Before a unambiguous judicial judgment. construction of statute, whether contained in a precedent not, an the court must hold that may trump agency’s, the statute the court’s construction. unambiguously requires Portland not do did so.

As the dissent out, it is not points necessary logically tous reach mis whether the Court of question Appeals Chevron for us to whether the Commission applied decide acted See post, lawfully. 1019-1020 (opinion Scalia, J.). Nevertheless, it is no we are mystery” why “great Post, 1019. There is here. reaching point genuine confusion the lower over interaction between courts the Chevron doctrine and stare decisis principles, as the peti tioners informed us at the certiorari of this litigation. stage Cert, See Pet. for of Federal Commission Communications et in 04-281, 19-23; al. No. Pet. for of National Cert. pp. Assn, & 22-29. Cable Telecomm. et al. No. pp. The Petition has been briefed. Brief for Federal point See 38-44; ers Brief 30-36. And for Petitioners Cable-Industry not of our the could undermine the reaching point purpose whether the of certiorari: to settle grant authoritatively we to Commission’s is lawful. Were Declaratory Ruling up the Chevron Declaratory Ruling hold the without reaching could strike down the Court of once point, Appeals again Portland Portland decision. Commission’s rule on based its (at once least could Court Appeals arguably) compel decision, since our reverse the Commission again despite reasonable our conclusion it is to read Communica that as an “infor- Act to solely tions cable modem service classify mation service” leaves untouched Portland's that the holding is not the best Commission’s of the interpretation reading statute. We have before decided similar questions not, were to our necessary strictly speaking, disposition. Felton, e. See, (1997) g., 203, 237 v. Agostini 521 U. S. (requir Courts of to adhere our ing control Appeals directly even thosе that on rest reasons ling precedents, rejected v. Simmons, decisions); other 543 U. Roper S. 628-629 (2005) (Scalia, J., this Court for not dissenting) (criticizing whether reaching the Missouri Court question Supreme erred follow by failing Court directly controlling Supreme that conclusion precedent, was to the though necessary decision). Court’s It is us for to do so once prudent again today.

IV We next address whether the Commission’s construction of the definition of “telecommunications service,” 47 U. S. C. §153(46), is a of the permissible Communications reading the Chevron framework. Chevron established Act under a familiar an whether two-step procedure evaluating of a agency’s statute is lawful. the first interpretation At we ask whether step, statute’s terms ad- “directly plain at 843. precise S., dres[s] issue.” U. at If question the statute is on the we defer two ambiguous at point, step as the so is agency’s interpretation construction long “a reasonable Id., choice for the policy to make.” agency 845. Commission’s interpretation permissible both steps.

A We first set forth our of the understanding interpretation of the Act Communications the Commission embraced. The issue before the whether Commission was cable compa- nies modem a “tele- cable service are providing providing communications service” in to an addition “information service.” Commission first concluded that cable modem

is an service,” “information a conclusion here. unchallenged The Act of defines “information service” as “the offering for capability generating, acquiring, storing, transforming, informa- or available processing, retrieving, utilizing, making telecommunications____” 158(20). tion via § modem Cable service is an service, reasoned, information the Commission because it with a provides consumers capa- comprehensive for information the Internet via bility manipulating using telecommunications. That high-speed users, service enables Web, browse the World Wide to transfer files example, frоm file archives available on the Internet via the “File Protocol,” Transfer access e-mail and Usenet news- Declaratory Ruling 4821, 37; Service Universal groups. ¶ Report service, 76. Like other forms of Internet ¶ cable modem service also users to the Domain access gives (DNS). Name matches System DNS, other among things, the Web addresses that end users into their page type (or on) (IP) browsers “click” with the Internet ad- Protocol dresses1 of the servers the Web the users containing pages Declaratory Ruling wish to aecess. All 4821-4822, 37. ¶ these features, the Commission concluded, were part information service that cable consumers. companies provide Id., Re- also Universal Service 36-38; see 4821-4823, ¶¶ port 75-79. ¶¶ time,

At the same Commission concluded modem service service.” was “telecommunications service” is “Telecommunications “the telecom- offering for a 47 U. S. C. munications fee directly public.” 153(46). “the “Telecommunications,” turn, defined as transmission, user, between points specified by among of information of in the the user’s without change choosing, form or content information as sent and received.” Internet, packets IP identify computers enabling addresses on the data Service to reach them. See Universal computers transmitted from other Report 11531, 62; Huber 985. 988 153(48).

§ that, The Commission conceded like all providers, companies information-service cable use “telecom- provide with munications” consumers Internet service; companies provide high-speed such service via the wire signals computer. that transmits to and from an end user’s Declaratory Ruling ¶ 4823, 40. For the Commission, how- question provid-

ever, the whether cable broadband Internet ers “offer” telecommunications involved more than whether necessary component telecommunications was one of cable Instead, modem service. whether that service also includes “offering” “turn[ed] a telecommunications on the nature of (em- ¶ id., 4822, offered,” the functions the end user is at added), phasis statutory for the definition of “telecommunica- “res[t] particular types tions service” does not on the of fa- 153(46) (definition ¶ used,” id., cilities 35; see applies “regardless of the “telecommunications service” facil- used”). ities point

Seen from the consumer’s of view, the Commission concluded, cable modem service not a is telecommunications offering high-speed because the consumer uses wire al- ways information-processing capabil- connection with the provided by ities Internet access, and because the trans- necessary component is mission of Internet access: “As provided part to the end user telecommunications is parcel integral of cable modem its service and other capabilities.” Declaratory Ruling The 39. wire is used, words, in other World Web, access the Wide news- groups, “transparently” and so forth, rather than to transmit ordinary-language computer messages and receive without processing storage message. supra, of See (noting Computer “transparent” II notion of transmis- sion). integrated offering character this led Commission to conclude cable modem is not a service transparent offering “stand-alone,” of telecommunications. Declaratory Ruling ¶¶ 41-43.

B Chevron's first This construction passes step. Respond- ents that it does that cable not, on the argue ground compa- nies Internet the un- providing necessarily “offe[r]” telecommunications used to transmit that service. derlying The word 153(46), however, as used in does not “offering” that Instead, result. can unambiguously require “offering” be read to mean a “stand-alone” of tele- reasonably offering e., an i. communications, ‍‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌‍that, offered service from user’s the transmits unadulterated perspective, messages by computer That from processing. conclusion follows not the or- only the word but also dinary from the meаning “offering,” of the Act. regulatory history Communications

1 Cable in the broadband companies Internet busi- ness consumers “offe[r]” an information service in the form of Internet telecommunications,” access and do so “via they § 153(20), but it does not a follow as matter of inexorably ordinary that also the language consumers they “offe[r]” (telecommunications) data transmission that is an high-speed 153(46). used to service, § this have held input provide We that where a terms of two or rea- statute’s admit more plain sonable choice of one of ordinary usages, Commission’s Verizon, them is at S., entitled to deference. 535 U. 498 See Commission’s the term (deferring interpretation “cost” reference to an defined by alternative linguistic usage what who is “[a] merchant asked about ‘the cost of provid- ” National Railroad ing goods’ might “reasonably” say); Passenger Corporation Corp., Boston & Maine v. U. S. (1992) construction entitled to deference (agency there where were “alternative definitions dictionary issue). word” at The term used in the definition as “offe[r]” service, §153(46), of telecommunications is ambiguous this way. to describe

It is common what “offers” usage company to a consumer what consumer be the inte- perceives finished even to the exclusion discrete grated product, as the dissent that con- components compose product, post, J.). 1006-1007 of Scalia, cedes. See One (opinion a car cars, well that “offers” but does might say dealership not “offer” the that make integrated major inputs purchasing such the ear as the or the It valuable, chassis. engine fact, be would, odd describe a car as “offer- dealership consumers the car’s in addition to the ing” car components itself. Even if it is that the linguistically permissible say car “offers” it cars, when offers that dealership engines shows, most, “offer,” term when to a com- applied mercial transaction, about it whether describes ambiguous the offеred finished only discrete product, product’s as well. It components does show no other usage is permitted. then, is whether the question, transmission component

of cable modem service is with sufficiently integrated finished service to make it reasonable to describe the two as See ibid. We think a single, integrated offering. that they are because sufficiently integrated, consumer uses the “[a] wire high-speed connection with the always information- processing Internet capabilities provided access, and be- cause the is a transmission of Internet necessary component Supra, access.” 988. In context, the telecommunications it is at least reasonable to describe as not “offer- companies to each consumers discrete that is to ing” necessary input and is used in with, connection a finished providing, always service. We think it no to misuse of language, example, that say cable Internet service do not companies providing DNS, “offer” consumers even DNS is essential though Declaratory Ruling Internet access. providing n. Likewise, a “offers” ¶38. telephone company consumers a that transmission transparent path conveys an not the data- necessarily message, ordinary-language transmission facilities that . . also . information “transmit] of the user’s 153(43), other elements choosing,” physical of the service, facilities used to like the provide telephone trunks and or the switches, the wires. What cable copper companies cable modem and providing service telephone companies “offer” service is Internet providing telephone service and telephone service finished respectively —the (or services, “via”) do so the discrete com- though they using ponents the end composing data transmis- product, including sion. Such be functionally need not integrated components described distinct “offerings.”

In the dissent response, argues that trans- high-speed mission component necessаry modem providing service is “offered” with Internet because service necessarily cable modem like service is offering delivery pizza service together with pizza, and to- offering puppies Post, with gether dog leashes. 1007-1008 (opinion The dissent’s to these un- appeal analogies only J.). Scalia, derscores the term “offer” is in the ambiguous way we have described. The entire is whether question (like here products are functionally com- integrated car) (like of a ponents or functionally pets separate leashes). That question turns not on the of the language Act, but on the factual of how Internet technol- particulars Chevron leaves works and ogy how it is provided, questions Commission resolve in first As the instance. Commission has “the candidly recognized, question may whether, be on en- always hand, the one an straightforward information with tity communi- providing single cations and or, hand, on the other computing components, two distinct one of which is a telecommu- services, providing Report service.” Universal Service nications ¶60. Because the term “offer” can sometimes to a single, refer finished and compo- sometimes the “individual product nents in a on offered” whether package being (depending “still to be described components sufficient possess identity unambig- 1006), fails post, the statute objects,” separate as component of cable classify uously telecommunications offering. leaves federal This as a distinct service modem complex area technical and policy in this telecommunications analogies. by warring Commission, not set to be certainty that cable the dissent’s not share do alsoWe delivery obviously pizza service and like is so service modem dogs that the Commission dog and leashes the combination thought Post, at 1007- reasonably otherwise. have could component of example, the transmission unlike For 1008. dog are not delivery leashes and service, service Internet pet (pizzas products and components finished integral having it deliv- pizza than pick up rather a dogs). can One By buying a leash. dog without own a one can ered, and reasonably a consumer concluded, contrast, the Commission purchasing a also without purchase service Internet cannot always oc- and the transmission Internet connection any processing. In information in connection with curs example, subjected that, for that statute event, we doubt (such Express and Federal “delivery” as offerors Service) regulation would common-carrier Parcel United companies to offer pizza-delivery require unambiguously delivery basis. a common-carrier on their services basic between distinction Commission’s traditional supports also supra, 976-977, see service, and enhanced ambiguous is Act the Communications the conclusion telecommunications companies “offer” whether about passed definitions Congress service. with cable modem this background against the Act in the Communications parallel may history, we assume and regulatory serv- “information service” “telecommunications terms meaning, the Com- incorporated substantially their ice” Board Joint g., re e. In Federal-State See, has held. mission ¶788 FCC Service, 12 Red. on Universal (1997) (noting that the “definition of enhanced services is substantially similar to the definition of information serv ices” and that “all previously services considered 'enhanced services’ are ”); ‘information services’ Commissioner Key v. stone Consol. Industries, (1993)(not Inc., 508 S. 152, 159 U. ing presumption Congress is aware judicial of “settled interpretation^]” administrative of terms when it enacts statute). a regulatory The history in at respects least two confirms that the term “telecommunications service” is ambiguous.

First, in Computer II Order that established the terms “basic” and “enhanced” services, the Commission defined those terms functionally, based on how the consumer inter- acts рrovided with the just information, as the Commission did in the order supra, below. See at 976-977. As we have explained, Internet service is not “transparent in terms of its interaction supplied with customer information,” Com- puter ¶ II Order 420, 96; the transmission occurs in connec-

tion with processing. information It was therefore consist- ent with the statute’s terms for the Commission to assume parallel that the term “telecommunications service” in 47 153(46) U. S. C. likewise “pure” describes “transpar- ent” path communications not necessarily separately pres- ent, from perspective, end user’s integrated in an offering. information-service

The application Commission’s of the basic/enhanced- service distinction supports non-facilities-based ISPs also this conclusion. long Commission has held that “all provide those who some form transmission services are necessarily common Computer carriers.” II Order 431, ¶ 122; see id., ¶ also 132 (“acknowledg[ing] the exist- ence of a component” communications in enhanced-service offerings). example, For subject Commission did not regulation common-carrier providers those service that of- fered enhanced services over telecommunications facilities, but did not themselves own underlying facilities— so-called providers. “non-facilities-based” See Universal Report in-

Service of these services 60. Examples used telecom- in which customer database services cluded Jones information, such as Dow News to access munications which lease networks,” well as added Lexis, and as “value as and transmission from common carriers provide wires those wires. See as service over well protocol-processing to the Commission's In re Amendment Sections 6U.702of (Third Computer Inquiry), Regulations and Rules 3 FCC supra, 1153, (1988); at 977 1150, pro- n. (explaining Red. conversion). communica- These services “combined] tocol held the Commission yet tions and components,” computing and therefore deemed enhanced” should be “always that they Universаl Serv- common-carrier to regulation. subject Report ice traditional distinc- this 11530, Following ¶60. Report classi- Service in the Universal tion, the Commission than owned their transmission that leased rather fied ISPs Id., facilities information-service providers. pure 11540, 81. ¶ conflict with this reg- statutory arguments

Respondents’ Act the Communications claim that ulatory history. They all carriers classifies as telecommunications unambiguously infor- that use telecommunications inputs provide entities concedes, this argu- mation service. As MCI respondent common-carrier regulation ment would subject mandatory that use telecommunica- all information-service providers service to the as an public. tions information provide input Inc., 30. For it would MCI, Brief for example, Respondent non-facilities-based to common-carrier subject regulation facilities. See Universal ISPs that own no transmission Report Service con- 66. Those ISPs provide to connect with facilities used sumers transmission supra, so, argu- under Internet, see respondents’ to consumers. “offer” telecommunications ment, necessarily necessarily all entities are that such Respondents’ position mandatory entails telecommunications” therefore “offering Commission entities common-carrier regulation never classified as “offerors” basic transmission service, and therefore common carriers, under Computer II re- gime.2 See Universal Report Service ¶81 (noting past policy); Commission Computer and Communications Industry Assn. v. FCC, (CADC 693 F. 2d (not- 1982) 198,209 ing and upholding Commission’s Computer II “finding that enhanced services... are not commoncarrier services within scope II”). of Title We doubt parallel that the term “telecommunications service” unambiguously this worked abrupt shift in policy. Commission Respondents’ analogy between companies pro- vide cable modem service and facilities-based enhanced- providers is, providers —that enhanced-service who own the transmissiоn facilities provide used to those serv- ices—fares no Respondents better. stress that under the Computer II rules the regulated Commission provid- such ers more heavily than providers. non-facilities-based The required, Commission for example, telephone local companies provided enhanced services to offer their wires on a common-carrier basis to competing provid- enhanced-service ers. e.g., See, re In Amendment Sections the 6^.702 of of Commission’s (Third Rules Regulations and Computer In- quiry), 104 F. C. (1986)(hereinafter C. 2d ¶ 964, 4 Com- puter Order). III Respondents argue that the Communica- tions Act unambiguously requires the same treatment for cable companies because companies also own the facili- they ties provide use (and cable modem service therefore service). information

2The dissent attempts to escape this consequence of respondents’ posi by tion way of an elaborate analogy between ISPs and pizzerias. Post, 1011 (opinion of Scaua, J.). This analogy is flawed. A pizzeria “deliv ers” nothing, but ISPs plainly provide transmission service directly to the public in connection with Internet service. For example, with dial-up service, process ISPs the electronic signal that travels over telephone local wires, and transmit it to the Internet. See supra, 974-975; Huber 988. The dissent therefore deny cannot position its logically would require applying presumptively mandatory Title II regulation to all ISPs. that the Communi- it think improbable We disagree. We Computer II the time freezes unambiguously Act

cations providers. information-service facilities-based of treatment says service” “telecommunications of Act’s definition The duties on regulatory stringent more about imposing nothing defini- The providers. information-service facilities-based telecommu- entity “offer[s] whether on solely hinges tion 158(46), § S. 47 U. C. to the public,” directly a fee nications carriers facilities-based subjects Act elsewhere though duties various 251(c) (imposing see stricter regulation, In the Com- companies). telephone local on facilities-based pro- facilities-based puter II subjected rules, the Commission of the nature of not because duties common-carrier viders of because rather carriers, but those made by the “offering” abuse would companies telephone that local concern “bottleneck” of the virtue they possessed power monopoly Computer II See owned. they facilities telephone local Computer III Order 231; 474-475, ¶¶ Order the naturally Verizon, 535 U. (describing S., at 489-490 12; ex- a local telephone of structure physical monopolistic car- facilities-based treatment differential change). definitions function therefore riers was of a service,” but instead “basic “enhanced-service” in its stringently, more to regulate Commission choice by service. enhanced that provided entities discretion, certain en- definitions however, parallel definitions, The Act’s on grounds facilities-based service, not the and basic hanced re- the Commission based, and was choice that which policy on facilities- duties regulatory special free to impose mains fact, In ancillary I jurisdiction. its Title ISPs under based so. do should it can and whether on comment invited it has supra, at 979. See non- classify to unambiguously fails Act if the sum,

In tele- that use providers information-service facilities-based service an information to provide inputs communications unam- it also fails “telecommunications,” then “offer[ors]” biguously classify facilities-based pro- information-service viders as telecommunications-service offerors; the relevant definitions do distinguish not facilities-based and non- facilities-based carriers. That suggests, silence instead, that the Commission has the discretion to fill the conse- quent statutory gap.

C We also conclude that the Commission’sconstruction was “a policy reasonable chоice for [Commission] to make” at Chevron’s step. second 467 U. S., at 845.

Respondents argue that the Commission’sconstruction is unreasonable because it any allows provider communications to “evade” regulation common-carrier expedient bundling information service with telecommunications. Re- spondents argue that under the Commission’sconstruction a telephone company example, could, for offer an information service like voice together mail telephone with service, thereby avoiding regulation common-carrier of its tele- phone service.

We need not decide whether a construction that resulted consequences these would be unreasonable because we do not believe that these results follow from the construction adopted. Commission As we understand the Declara- tory Ruling, say Commission did not any telecom- munications service priced that is or bundled with an infor- mation service is automatically unregulated under Title II. The Commission said that a input telecommunications used provide an information “separable that is from the data-processing capabilities of the service” and is instead “part parcel [the information service] integral and is [the service’s] information capabilities” other is not tele- a offering. communications Declaratory Ruling 4823, 39; supra, see at 988. This construction does not leave all information-service offerings exempt mandatory from regulation. Title II “It is plain,” example, telephone company local “cannot exchange local residential of its II regulation Title

escape mail.” voice with service by packaging simply service a is because That 11530, 60. Report Service Universal telephone with mail voice that packages company telephone path telephone transmission a transparent offers — service of the independent information transmits service —that mail. voice by provided cаpabilities information-storage his abil- call, a makes telephone a person when instance, For only is call the using information receive and convey to ity capability. voice-mail additional the affected trivially an- time-of-day a add to company, telephone a were Equally, his up user picked the time every that played nouncement in the transmitted information “transparent” the telephone, infor- on the dependent trivially only be would call ensuing contrast, By provides. the announcement service mation modem cable to provide used transmission high-speed service component integrated functionally is a service further with connection only data it transmits because In- provide necessary and of information processing therefore construction The Commission’s service. ternet assume. respondents than limited more was does, service modem that cable answer Respondents consum- from transmission “transparent” fact, provide Re- mistaken. too, is this argument, but perspective, er’s offering “information-service” characterize spondents com- a cable of access only consisting access Internet it ability pro- and Web service, page, its e-mail pany’s aWhen Web page. a personal to create consumers vides content accesses offerings those beyond goes consumer respond- company, the cable than other by parties provided less no transmission” “pure uses consumer argue, ents with together phone who purchases consumer than mail. voice the Commission’s with believe, conflicts we

This argument, un an service, modem nature understanding user end an When reasonable. be find we derstanding accesses a third-party’s Web site, the Commission concluded, he is equally using the information service provided cable company that offers him Internet access as when he accesses the own cоmpany’s Web site, its e-mail service, or his personal Web page. For example, the Commission found below, part of the information service cable companies provide is access to DNS service. See supra, at 987. A user cannot reach a Web third-party’s site without DNS, which (among other things) matches the Web site address the end user types into (or his browser “clicks” on with his mouse) with the IP address of the Web host page’s server. See P. Albitz & Liu, C. (4th DNS and BIND 10 (For 2001) ed. an Internet user, “DNS is a must. . . . all [N]early of the Internet’s network services use DNS. That includes the World Wide Web, electronic mail, remote terminal access, and file transfer”). It is at least reasonable to think of DNS as a for “capability ... . .. acquiring retrieving, utilizing, making available” Web site addresses and therefore part of the information service cable companies provide. 47 U. S. C. § 153(20).3 Similarly, the Internet service provided by cable companies facilitates access to third-party Web by of pages fering consumers the ability store, or “cache,” con popular tent on local computer servers. See Declaratory Ruling 4810, 17, and ¶ n. 76. Cacheing obviates the need for the end user to download anew information from third-party

3The dissent claims that access to DNS does not count as use of the information-processing capabilities of Internet service because DNS is "scarcely more than routing information, which is expressly excluded from ” the definition of ‘information service.’ Post, at 1012-1013, n. 6 (opin J.). Scalia, ion But the definition of information service does not ex clude “routing information.” Instead, it “any excludes use of any such capability for the management, control, or operation of a telecommunica system tions or the management of a telecommunications service.” 153(20). § U. S. C. The dissent’s argument therefore begs the question be it cause assumes that Internet service is a “telecommunications system” or “service” that (a DNS manages point on which, contrary to the dissent’s assertion, post, 6,n. we need no take view for purposes of this response). them, attempts access consumer time each sites Web In retrieval. information speed increasing thereby via sites third-party Web reach can words, subscribers other [only]be contents, their browse Web, and Wide World “the . . . ‘capability offers provider service their cause utilizing... informa retrieving [and] [storing]... acquiring, (quoting 47 ¶76 Report Service Universal tion.’” provid access Internet 153(20)). “The S. C. U. access,” Uni public Internet to members ers offer ability transparent 79, not Report 11539, Service versal information. transmit to perspective) (from user’s end construction ‍‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌‍the Commission’s conclude therefore We reasonable. was

V treat the Commission’s urges that Inc., MCI, Respondent treat its with inconsistent service modem cable ment (describing serv DSL 975 supra, at see service, of DSL ment capricious deviation arbitrary and anis ice), therefore and 706(2)(A). points MCI C. U. policy. 5 S. agency See from In began offer to companies telephone local when out to tele technology in addition through DSL ternet access Computer II applied its service, Commission phone to required them them classification facilities-based avail service DSL transmit used to telephone lines make nondiscriminatory, common- on competing ISPs able II Computer (describing supra, See terms. carrier providers); enhaneed-service classification facilities-based Offering Advanced Services Wireline Deployment In re Red. Capability, 13 FCC Telecommunications Order) (classify (hereinafter (1998) Wireline ¶¶ 36-37 service). MCI a telecommunications service ing DSL regulate cable decision Commission’s that the claims its with is inconsistent Title II similarly under companies policy. DSL however, conclude, We dif- service treating modem explanation

reasoned ferently from DSL service. As we have already noted, see supra, at 981-9S2, the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies change.4 It has done so here. The traditional reason for its Computer II common-carrier treatment of facilities-based carriers (including carriers), DSL as the Commission explained, was “that the telephone network [was] primary, if not exclusive, means through which in- formation providers gain can access to their custom- ers.” Declaratory Ruling 4825, ¶ (emphasis original; quotation internal omitted). marks ap- Commission plied the same treatment to DSL service based on that his- tory, rather than on analysis an of contemporaneous market conditions. See Wireline Order (noting 24031, 37 DSL car- riers’ “continuing obligation” to offer their transmission facil- ities to competing ISPs on terms). nondiscriminatory The Commission in the order under review, contrast, concluded that changed market conditions warrant different treatment of facilities-based cable companies providing In ternet access. Unlike at the time of Computer II, substitute forms Internet transmission today: exist “[Residential high-speed access to the Internet is evolving multiple over platforms, electronic including wireline, cable, terrestrial wireless and satellite.” Declaratory Ruling ¶ 4802, 6; see also U.S. Telecom Assn. v. FCC, (CADC 290 F. 3d 415, 428 2002) (noting findings Commission competition “robust ... in market”). broadband The Commission concluded “ that ‘broadband services should in exist a regula minimal tory environment promotes that investment and innovation competitive market.’” Declaratory Ruling ¶5. 4Respondents vigorously argue that the Commission’s purported incon sistent treatment is a reason for holding the Commission’s construction impermissible under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. (1984). 837 Any inconsistency on bears whether the Commission given has a reasoned explanation for its current position, not on whether its interpretation is consistent with the statute. cable treating reasoned, warranted Commission

This, pro- enhanced-serviеe facilities-based unlike companies arbi- Id., nothing findWe 4825, 44. past. viders analysis a fresh providing the Commission’s about trary it has which cable industry, to applied the problem rational is adequate This rules. to these subjected never conclusions. for the Commission’s justification justi- the Commission’s effect, that argue, Respondents from service providers modem cable for fication exempting to DSL force similar with applies regulation common-carrier The Com- argument. address need not We providers. to in an effort a first be step to mission’s decision appears information- regulates Commission the way reshape con- tentatively it has be why may service providers; tele- facilities-based service provided that DSL cluded as an solely classified also be should companies phone Appropriate Framework re In See information service. Facilities, over Wireline Internet Broadband Access need (2002). The Commission 8019, 3030, ¶ 17 FCC Red. in the Declara- reasoning the policy immediately apply Ruling tory providers. of information-service all to types Com- its to revisit longstanding has decided It apparently information-service puter II classification of facilities-based between inconsistency Any incrementally. providers of DSL treatment and the Commission’s under review order the Commission when addressed adequately can be service it when of DSL its treatment reconsiders fully I Title jurisdiction, ancillary its whether, pursuant decides access ISPs allow independent companies to require ex-We supra, and this page. See facilities. their we express In particular, matters. on those no view press clas- may, should, lawfully the Commission on how no view service. DSL sify

[*] ^{[*] [*]} under order in the resolved the Commission The questions technical, complex, is matter [that] a “subject involve review dynamic.” Power, 534 S.,U. at 339. The Commis- Gulf sion is in position a far better questions address these than we Nothing are. in the Communications Act or the Administrativе Procedure Act makes unlawful the Commis- sion’s expert use of its policy judgment to resolve these dif- questions. ficult judgment Appeals Court of reversed, and the cases are proceed- remanded for further ings opinion. consistent with this

It is so ordered. Justice Stevens, concurring. join

While I opinion the Court’s in I full, add this caveat concerning Part correctly III-B, which explains why a court appeals’ interpretation ambiguous provision an reg- in a ulatory statute does not contrary foreclose a reading by the agency. explanation That necessarily would not applica- be ble to a decision this Court that presumably would re- any move pre-existing ambiguity.

Justice Breyer, concurring. join

I opinion the Court’s I because believe that the Fed- eral Communications Commission’sdecision falls within scope statutorily its delegated authority though perhaps — just barely. separately I write impor- because I believe it point tant out that my view, has Justice Scalia, wrongly opinion characterized the Court’s in United States (2001). v. Corp., Mead 533 U. S. 218 He states Court held in unspecified Mead degree “some of formal process” agency before required” “was for courts to ac- agency’s cord the decision deference under Chevron U.S. A. v. Inc. Natural Resources Council, Inc., 467 U. S. Defense (1984). Post, (dissenting opinion); at 1015 see also ibid. (formal process harbor”). only is “at least the safe correctly Scalia has Justice way characterized the which he, in dissent, opinion. characterized the Court’s Mead S., 533 U. at 245-246. But the opposite. Court said the An 1004 Con- when deference qualifies Chevron for

agency action agency the delegated to implicitly explicitly or gress has interpretive including an statutory “gap,” authority “fill”a to language a stat- of ambiguity in the through an gap created supra, Mead, supra, 843-844; Chevron, provisions. ute’s delegation that such in Mead said The Court 226-227. power agency’s by variety ways, an “may in a be shown of rulemaking, notice-and-comment adjudication or engage in to congressional comparable a indication other some of added). ex- The Court (emphasis 227 S., at U. 533 intent.” rule- notice-and-comment the absence plicitly that stated “some- has case,” for the Court making “not decide did no when even deference for Chevron reasons found times was af- required formality and none was administrative such it “has repeated that the Court And Id., at 231. forded.” Congress would ex- variety indicators recognized a added). (emphasis Id., at pect deference.” Chevron that the hold would surprising that Court is not It a nec- neither rulemaking proceeding is a formal existence according defer- for Chevron essary condition anor sufficient is not It interpretation aof statute. agency’s to an ence at an might agency arrive an necessary because condition congressional enactment interpretation of a authoritative mentions. ways including ways, Scalia other JUSTICE condition a sufficient It is not supra, at 231. g., Mead, e. See, leave matter may Congress have intended because irrespective agency, up interpretation particular of a interpreta- at that arrive agency uses to procedure is at issue. legal question unusually basic say, an where tion, Cline, 540 Systems, v. Inc. Dynamics Land Cf. General ques- (2004) agency's answer (rejecting U. S. discrimination law forbids age discrimination whether tion relatively young). against the emphasiz- right in I believe Scalia

Thus, while Justice the ab- may appropriate be deference ing that Chevron agency sence of formal proceedings, give Mead should not him cause concern. Scalia, with whom Justice and Jus- Justice Souter join as to Ginsburg dissenting. I, Part

tice (FCC Federal Communications Commission or Com- mission) again has attempted once to concoct “a whole new (or regime regulation of of competition)” free-market under guise the statutory construction. MCI Telecommunica- Corp. tions v. Telephone American Telegraph & Co., 512 (1994). 218, U. S. Actually, in might these cаses, it be say more accurate to the attempted Commission has to es- tablish a regime whole non-regulation, new which will make for more or less competition, free-market depending upon experts whose are important believed. The fact, how- ever, is that the Commission has chosen to achieve this through implausible an reading of the statute, and has thus authority given exceeded the by Congress. it

I The first ruling sentence of the FCC under review reads as follows: “Cable provides modem high-speed access to the many Internet, as applications well as or functions that can be used with system access, that over facili- ties.” Inquiry In re Concerning High-Speed Access Internet Over Cable and Facilities, Other 17FCC 4798, Red. (2002)(hereinafter ¶ 4799, Declaratory Ruling) (emphasis omitted). added; footnote Does compa- this mean that cable nies high-speed “offer” access to Surprisingly the Internet? not, if the Commission the and are to Court be believed. happens

It that cable-modem popular precisely service is because high-speed of the provides, access it that, once connected with the Internet, cable-modem subscribers often applications use Internet providers and functions from other company. than the cable purposes Nevertheless, for of clas- (with the company does, Commission the cable sifying what the rest of emphasis on puts all approval) the Court’s functions”). It does (the or “applications additional package “offe[r]” its company does claiming the cable by so it offers because access high-speed Internet customers applications and particular conjunction with only in access offer- as a “stand-alone “separately],” than rather functions, ¶ 4823, 40. ing.” Id., at from appropriately derives term “offer” on focus Under eases. in these statutory at issue definitions “59, ‘information Stat. 1996, 110 ofAct Telecommunications interaсt store, generate, capacity to involves service’” via telecommuni- “information manipulate otherwise with, or “ 153(20). ‘telecommunica- turn, In C. 47 U. S. cations.” among transmission, between as “the is defined tions’” the user’s of information user, specified points the infor- or content form change in the choosing, without §153(43). Finally, “‘tele- and received.” sent as mation ” offering of tele- “the is defined service’ communications regardless public directly ... to the a fee for communications §153(46). is question here The used.” facilities the “offe[r]... telecom- providers cable-modem-service whether they are public.” so, If directly the to a fee munications their carriers, like regulation common as Title II subject to through access provide Internet who competitors chief technologies. other ambiguous in is word “offer” the that concludes

The Court dictionary definitions’” “‘alternative has it that sense the National (quoting Ante, at 989 might be relevant. that Corp., Maine & Boston Corporation v. Passenger Railroad that however, (1992)). me, to It seems 407, U. S. meaning really the pertains not analytic problem relevant The offered. identity is of what “offer,” but package components ain individual whether the question is identity described to be possess sufficient still being offered they been have or offer, whether objects of the separate as changed by so components their with the combination other longer that it is no way. reasonable to describe them in that (to 990) agree adapt Thus, I example, the Court’s ante, at that it say would be odd that a car dealer is the business selling carpets steel or because the cars he sells include both steel carpeting. and frames Nor does the com- water pany hydrogen, pet sell nor (though dogs store water and largely level). cats are water at the molecular But what is true not, sometimes is as the always Court assume, seems to true. There are instances in deny it which is ridiculous tо part joint that one offering of a being merely is offered be- “ ” it cause is not on a offered ‘stand-alone’ basis, ante, 989. example, If, for up pizzeria I call a they and ask whether delivery, offer both common “usage,” sense and common ante, at prevent 990, would answering: them from “No, we do delivery not you offer pizza if order a us, from we’ll —but you bake bring it for your and then it to logical house.” response to this something would be you on of, order “so, delivery.” do offer pizza-man But our may deny continue to explain, obvious and paraphrasing the FCC and Court: though “No, even bring pizza your we house, we are actually ‘offering’you delivery, because the deliv- ery provide we to our ‘part parcel’ end users is our pizzeria-pizza-at-home ‘integral service and is to its other capabilities.’” Declaratory Ruling Cf. 4823, ¶39; ante, Any 997-998.1 reasonable customer would conclude at point that his interlocutor crazy was following either too-clever-by-half some legal advice.

In inputs short, for the of a qualify finished service to (as objects of an “offer” reasonably that term under- stood), perhaps is it necessary, surely sufficient, but not a condition that separately the seller offer input “each discrete 1The myth pizzeria that the does offer delivery becomes more even difficult to maintain pizzeria when the quick advertises delivery one of as its advantages over competitors. That, course, is the cable case with broadband. necessary providing

that is ... a finished service,” ante, pet may policy at selling 990. The store puppies have a only any say leashes, with but customer will that it does offer puppies puppy puppy, a leashed is still a even —because though it is not offered on a “stand-alone” basis.

Despite mighty prove the Court’s labors to otherwise, ante, component at the telecommunications ample independent cable-modem service retains suсh iden- tity regarded being it especially that must be as on offer— perspective when seen from the of the consumer or the end purports user, which the Court determinative, to find ante, ruling began by 990, 993, 998, 1000. The Commission’s noting provides “high-speed that cable-modem service both “applications access to the Internet” and other and func- Declaratory Ruling tions,” exactly 4799, 1, because that is any perceive how reasonable consumer would it: consist- ing separate things. of two by

The consumer’s view of the matter is best assessed ask- ing products what other cable-modem service substitutes for marketplace. in the provided Broadband Internet service by companies is one of the three most common forms being service, Internet dial-up the other two access and (DSL) Digital broadband Subscriber Line Ante, service. physical In two, 974-975. each of the other transmission pathway legally required indeed, Internet is is sold— separately to be functionality. from the Internet sold— dial-up physical pathway access, With comes from the (ISP) telephone company, provider and the Internet service provides functionality.

“In the case of Internet two access, the end user utilizes different and distinct services. One is the transmission pathway, a telecommunications service the end user purchases telephone company. from The second service, Internet access which is an enhanced serv- provided by [provided Th[e] ice an ISP.... functions separate pathway ISP] are from the transmission

1009 over which that data pathway travels. The regu- is a lated telecommunications service; the enhanced service offered over it is not.” FCC, Officeof Policy, Plans and J. Oxman, The FCC and Unregulation the of the In- p. ternet, (Working 13 Paper July 1999), 31, No. availa- ble at http://www.fcc.gov/Bureaus/OPP/working_papers/ (as oppwp31.pdf visited June 2005, and available in file).2 Clerk of Court’s case

As the Court acknowledges, ante, аt 1000,DSL service has been similar dial-up service respect in the physi- cal connection to the Internet must be separately offered from Internet functionality.3 Thus, shopping customers dial-up or DSL service will not be able to use the Internet they get unless both provide someone to them physi- with a cal connection and provide someone to them applica- with tions and functions such as e-mail and Web access. It is therefore inevitable that regard customers will compet- ing cable-modem service giving them computing both functionality physical and the pipe by which that functional- ity computer comes to their pizza and the delivery —both service that nondelivery pizzerias require purchased to be from the company.4 cab 2See also In re Federal-State Joint Board on Service, Universal FCC Red. 11501, 11571-11572, (1998) (end users “obtain telecommu

nications service from local exchange carriers, and then use information services provided by their Internet provider service and [Web site opera tors] order to Web]”). access [the 3In the context, DSL physical connection is generally resold to the consumer by an ISP that has taken advantage of telephone company’s offer. The consumer very knows well, however, physical that the connec tion is a necessary component for Internet which, just ‍‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌‍access as in the dial-up context, is not provided by the ISP. 4The Court contends that analogy this inapposite because one need pizza have a delivered, ante, whereas one purchase must cable connection in order to use ISP cable’s functions. But the ISP func provided tions by the cable company can be used without delivery— cable by accessing from them an Internet connection other than cable. The (the delivery provided by

Since the cable broad- computer band connection between the customer’s and the facilities) company’s computer-processing is down- computer-processing stream from facilities, there is no question merely that it serves as a conduit for the informa- already tion by services that have been “assembled” the company capacity in its as ISP. This is relevant be- statutory cause of the distinction between an “information service” and “telecommunications.” The former involves capability getting, processing, the of manipulating infor- §158(20). by mation. latter, The contrast, involves no “change in the form or of content the information as sent §153(43). and received.” cable-company-assembled When delivery information enters the cable for to the subscriber, already the information complete. service is The informa- (as tion requires) generated, has been acquired, the statute processed, stored, transformed, retrieved, utilized, or made All available. that remains is for the information in its final, (via telecommunications) unaltered form, to be delivered to the subscriber. insubstantiality

This reveals by of the fear invoked both the Commission and the Court: the fear of will what happen provide physical pathway to ISPs that do not yet acquire access, Internet still use telecommunications to pieces necessary they to assemble the information that pass According back to their reductio, customers. to this ante, at providers 993-995, if cable-modem-service are provide deemed to service,” “telecommunications then so they must all ISPs because all “use” telecommunications in providing (by functionality connecting Internet to other merger of physical connection and Internet functions in cable’s offer intertwined,”’ ante, ings has nothing to do with the ‘“inextricably (like of nature the two a car and its carpet), but is an artificial product company’s the cable marketing decision not to offer the two separately, so here) Declaratory Ruling that the Commission (by could under review exempt it from common-carrier status.

parts of including providers, Internet, Internet backbone example). In pizzeria analogy, equiv- terms of the this is saying alent pizzeria delivery, that, if the “offers” res- all delivery, taurants ingredients “offer” because of the food they serve their places; customers come have from other no (whether get matter how their eating customers the food it by coming themselves), at the pick restaurant, or up it they product still delivery consume a for which was a neces- sary “input.” This is Concluding delivery nonsense. pizza of the delivery finished an constitutes “offer” does require serving the conclusion prepared that the food includes an delivery. “offer” of analogy And that does not “ point justice, even do the since serv- ‘telecommunications ” ice’ is offering defined as “the for a telecommunications ” 153(46) directly added). fee public. (emphasis ISPs’ use of processing telecommunications in their of infor- mation is directly public. not offered “regulatory history” depends on which the Court so much, provides ante, 992-997, why another reason regulation worry. common-carrier is all ISPs not a Under Computer its Inquiry rules, which foreshadowed the defini- tions of “information” and services, “telecommunications” ante, at 976-977, the regulating Commission forbore from as common carriers “value-added networks” —non-facilities- providers based who leased basic services from common car- riers and bundled them with enhanced services; it said that they, providers, unlike facilities-based would be deemed to provide only services, enhanced ante, at That 993-994.5 5 The says Commission explain forbearance cannot why value-added net works regulated were not providers basic-service because it was not given power the to forbear until Reply 1996. Brief for Federal Petition ers n. 1. is It true that when the Commission ruled on value-added networks, the statute did explicitly provide not any for more fоrbearance — than it provided for categories the of basic and enhanced services that Computer Inquiry rules established, and which the through forbearance was applied. Circuit, however, The D. C. had long recognized since today result can be achieved under the Commission’s same statutory authority imposing to forbear from most Title II statutory regulations. fact, 160. In criteria for "just reasonable,” bearance—which include what is and “nec essary protection consumers,” and “consistent with for the 160(a)(1), (2), §§ (3) correspond public interest,” well — policy with the kinds of reasons the has invoked Commission justify peculiar its construction of “telecommunications service” to exclude cable-modem service. puts great in

The Court also stock its conclusion that using cannot information cable-modem subscribers avoid capacity, provided by company in its services ISP they only click-through Ante, even when to other ISPs. if uses For, 998-1000. even a cable-modem subscriber designates page provided ISP, e-mail from another some by advantage company page, takes the cable as his home applications pro- of none of the other standard and functions by using company, will be the cable vided the cable he still (DNS) company’s System and, when Domain Name server goes popular pages, perhaps he Web versions of them argument company’s are stored in the cable This suf- cache. problems. First, fers from at least two context telephone recognizes ex- services, a de minimis Court ception to contamination of a telecommunications excep- Ante, an information at 997-998. A similar service. apply question here. tion would seem to to the functions scarcely routing particular, DNS, in more than informa- II discretionary power regulation.” to “forbear from Title Commission’s FCC, Industry Computer and Communications Assn. v. 693 F. 2d (1982). Computer Inquiry says apply rules should not The its Commission also lines. telеphone in they developed to cable because were the context ante, 35-36; But to the at 996. Brief for Federal Petitioners see also Computer Inquiry approach, there imported extent the statute the lines, since telephone applying differently is no basis for it to cable than of the “regardless applies the definition of “telecommunications service” 153(46). S. facilities used.” U. C. expressly tion, which is from the definition “in- excluded §153(20).6 apparently formation it Second, service.” possible separately from, to sell a telecommunications service although conjunction pre- with, services; ISP-like that is cisely happens what context, the DSL and the Commission does not contest be done in of cable. that it could the context only impediment appears to be fail- the Commission’s require companies unbundling ure to from that it cable required providers Computer its facilities-based under Inquiry.

Finally, notwithstanding I note that, must Commis- self-congratulatory paean deregulatory largesse, sion’s to its g., e. Brief for Federal Petitioners it concluded the Declaratory Ruling by asking, paraphrases, as the Court jurisdiction Commission] [the “whether under its I Title require companies should cable to offer other access to ISPs their facilities Ante, on common-carrier see 979; terms.” Reply Arg. also Brief for 9; Federal Petitioners Tr. of Oral given, 17. In words, other what the Commission hath may away Commission well take it doesn’t. This is —unless experienced agency a wonderful illustration of how an can (with courts) statutory some assistance from credulous turn constraints into bureaucratic discretions. The main source regulatory authority of the Commission’s over common carri- inappli- ers is II, Title but Commissionhas rendered by concluding cable in this instance that the definition (in ambiguous “telecommunications service” is does 6The says Court that invoking explicit exception this from the definition services, control, of information applies оnly which “management, operation of a system management telecommunications or the of a tele service,” §153(20), communications begs question whether cable- service, ante, modem service includes a telecommunications n. 3. not, I think and cite the exception only to demonstrate that the incidental prevent functions do not from including telecommunications qualifies. it otherwise It begs question, is rather the Court that if saying exception that the apply cannot because cable is not a telecommuni cations service.

1014 view) apply its current to cable-modem service. It contem- (unnecessary) by plates, altering however, outcome, that (i changing e., II the law its construction of the Title defini- tions), change reserving right but the facts. “ancillary” powers, sparingly its undefined and used Under might that it the Commission conclude can order cable com- panies component the telecommunications to “unbundle” presto, apply cable-modem service.7 And II will then Title they finally “offering” them, because be telecommuni- will course, cations will still have service! Of Commission statutory regulating power to forbear from them under (which § already tentatively do, would 160 it has concluded it 94-95). Declaratory Ruling ¶¶ Such Mobius- strip reasoning principle that the con- mocks statute agency any meaningful way. strains the in regulatory done, After all is said and after all the cant has agency expertise been translated, and the smoke of blown away, perfectly it remains clear that who sells someone “offering” cable-modem service is telecommunications. For simple statute, reason set forth in the I would affirm Appeals. the Court of

II opinion, In Part III-B of its the Court continues the years improvisation project began it administrative-law four (2001). ago Corp., in 583 To United States v. Mead U. S. 218 comprehensible it drasti- rule,8 the extent set forth a Mead 7 provid Under the assumption Commission's cable-modem-servicе services,” providing ers are not there is reason to “telecommunications it can I powers impose doubt whether use its Title common-carrier-like 153(44) requirements, that a “telecommunica specifically provides since only chapter a common under this tions carrier shall be treated as carrier services” engaged providing to the extent that it is telecommunications added), I and II. (emphasis chapter” and “this includes Titles Vermeule, produced, For a Mead has see description of the confusion Mead, (2003) Trenches, (concluding 71 Geo. Wash. L. Rev. stumbling that “the courts into inadvertently Court sent the lower has land”); Bressman, no-man’s Has Muddled Judicial Review How Mead cally limited the categories action that would agency qual for ify deference under Chevron U. S. A. Inc. v. Natural Re sources Council, Inc., (1984). 467 U. S. 837 For Defense the example, taken position an by before the agency Su preme Court, with full of approval the head, would agency not qualify. Rather, some unspecified of degree formal proc ess was required was at least the safe only harbor. See —or Mead, at supra, 245-246 (Scalia, J., dissenting).9

This meant that many more issues for appropriate agency determination would reach the courts without benefit of an agency position entitled to Chevron deference, requiring courts to rule on these issues de novo.10 As I out pointed Action, Agency 58 (2005) (“Mead Vand. L. Rev. 1475 has muddled judicial action”). review of agency 9 Breyer Justice attempts to clarify by Mead repeating its formula tions that Court has “sometimes found to give reasons” Chevron defer ence in a (still-unspecified) (still- “variety of ways” of because unspecified) "variety of indicators,” ante, at 1004 opinion) (concurring (internal quotation marks omitted). and emphasis He also notes that def erence is sometimes inappropriate for reasons unrelated to the agency’s process. Surprising those who thought the Court’s decision not to defer to the agency General Dynamics Land Systems, Cline, Inc. v. 540 U. S. (2004), 581 depended on its conclusion that there was “no serious question . . . about purely textual ambiguity” in statute, id., at Breyer 600, Justice seemingly that attributes to a decision still- underdeveloped exception to Chevron deference —one “unusually basic legal question[s],” ante, at 1004. The Court today (thankfully) does follow approach: this It its bases decision on what it sees as statutory ante, ambiguity, asking without whether the classification of cable-modem service is an “unusually question.” basic legal that, It is true even under the broad basis for that propose deference I (viz., any agency position plainly that approval has the head, the agency see United States v. Mead Corp., 218, 256-257 (2001) 533 U. S. J., (Scalia, dissenting)), some interpretive novo, matters will be de decided without deference to agency views. This occurrence, would be a however, rare Supreme Court level —at least with respect to of any signifi matters cance to the agency. Seeking to achieve 100% agency control of ambigu provisions ous through the complicated method the proposes Court is not worth the incremental benefit. (under dissent, this in turn meant the law it as was under- stood until today)11 many statutory ambiguities be resolved in might fashions varying by successive agency administrations would be resolved finally, conclusively, forever, federal by an “ossification judges producing — of our large portions statutory law,” S.,U. at 247. The Court moves solve today this problem its own creation another inventing yet deci- breathtaking judicial novelty: sions to reversal subject by executive officers.

Imagine following sequence events: FCC action is ultra challenged vires under the statute; governing litigation reaches all the way Court of the Supreme United States. The Solicitor General sets forth the FCC’s official position Commission) (approved by in- regarding of the terpretation statute. Mead, Applying however, the Court denies the agency position deference, Chevron finds that the best of the statute interpretation contradicts and agency’s position, holds the action un- challenged agency lawful. The agency conducts a promptly and rulemaking, 11The Court’s unanimous holding States, in Neal v. United 516 U. S. 284 (1996), plainly rejected the any notion that form of deference could cause the Court to revisit a prior statutory-construction holding: “Once we have determined a statute’s meaning, we adhere to our ruling under the doc decisis, trine of stare and we assess agency’s an later interpretation of the Id., against statute that settled law.” at 295. The Court attempts to reinterpret this plain language by dissecting the cases Neal cited, noting “ they that previous referred to determinations of ‘a clear mean statute’s ” ing.’ Lechmere, NLRB, Inc. v. (1992) 527, 537 502 U. S. (quoting Maislin Industries, S.,U. Steel, Inc., Inc. v. Primary (1990)). 497 U. S. But those cases today’s reveal that on the focus term is revisionist. “clear” The oldest case Industries, word, in the chain using Maislin not did rely on prior a decision that held statute to clear, be but on a run-of- the-mill statutory interpretation Id., in contained a 1908decision. at 130- 131. When Maislin Industries referred to the Court’s prior determina tion of “a statute’s clear meaning,” it was to referring the fact that the prior decision clear, had made the statute and was conducting not a retro spective inquiry into prior whether the decision had the statute declared itself to be clear on its own terms. adopts comports position rule that with its earlier ef-—in disagreeing fect Supreme concerning with the Court the best interpretation According today’s opinion, statute. the agency thereupon is free to take the action that the Su- preme Court found unlawful. only

This is not probably bizarre. It is unconstitutional. Chicago As we held in & Southern Air Lines, Inc. v. Water man Corp., (1948), S.S. 333 U. S. 103 Article III courts do not sit to render decisions that ignored can be reversed or by executive In Appеals officers. case, the Court of had jurisdiction determined it had to review an of the order Civil awarding Aeronautics Board By an air overseas route. statute subject such were orders approval Presidential question the order in approved by fact had been Id., President. at any In 110-111. order to avoid conflict with foreign-affairs powers, President’s Ap the Court of peals concluded that it would review the board’s action “as a regulatory agent Congress,” and the results that review subject approval would remain by disapproval or the Pres ident. Id., at I my 112-113. As noted in Mead dissent, S., U. the Court suggestion: “Judg bristled powers ments within the by Judiciary vested courts Article of may lawfully the Constitution revised, be over turned refused faith and Department credit another supra, Government.” Waterman, at 113. That what today’s effectively decision agency allows. when the Even party itself is to the case which the Court a construes agency statute, will be disregard able that construc tion and seek contrary Chevron deference for its construc tion the next time around.12 Court contends that no involved, reversal of judicial holdings is “a because court’s opinion as to the reading best of an ambiguous authoritative,” ante, statute ... is not at 983. fails to appreciate That difference between a de novo construction of a and statute a decision

whether to defer to agency’s an position, which not even “purport does give statute Mead, judicial a supra, interpretation.” (SCALIA, at 248 today’s novelty in re- itself, belated like Mead course, Of many to bedevil the creates uncertainties mediation of Mead interpretation conclusive, the is A courts. court’s lower interpretation to be “the says, only if it holds Court merely reading if it only permissible statute,” of the and not reading.” Ante, this at 984. Does best it to be “the holds statutory-construction involving cases that in future mean specify (presum- must agency-administered statutes courts dictum) holding? they ably And whiсh of the two are past, many this dic- decided in the before of the cases what Apparently, requirement silence on was established? tum’s agency subject to point that the court’s decision is means judicial whether statute, a construction of a reversal:'“Before agency’s, may trump precedent an not, a contained in unambiguously requires the must hold that the statute court (I made, Ante, at 985. have not court’s construction.”13 any made, calculation as far as I know the has not Court many past statutory now decisions are of how hundreds “unambigu- agency-reversible an because of failure to include very large.) finding. suspect the number is How ous” I confronted with much extra work will it entail for each court agency-administered it has an statute to determine whether (“best”) only per- only right reached, result, but “the “unambiguous” Is the standard for under missible” result? agency-reversal the stand- rule the same as the Court’s new (If step “unambiguous” so, under one of Chevron? ard for decided-upon its de novo construction J., dissenting). Once a court has statute, longer no is a “different construction” that is “consistent there ante, by the adoption holding,” with the court’s and available for agency. deci undermining prior judicial of all chaotic Suggestive of the same explanation explicitly ambiguity that do not renounce is the Court’s sions decision does not amount prior judicial from why agency departure choose holding, may, consistent with the court’s overruling: agency “[T]he inter construction, the authoritative agency a different since the remains reason) (within charged [it statutes [ambiguous] the limits of preter Ibid. administering].” with every course, case that step reaches two of Chevron will agency-reversible.)

be “unambiguous” Does the dictum produce stare decisis effect even when a affirming, court is rather than reversing, agency action—so that in the future the agency must adhere to that interpretation? affirmed If so, does the agency victorious hаve right appeal a Court Appeals judgment in its favor, on ground question text in (as is in fact not Appeals Court of held) unambiguous, so agency should change be able to its view in the future?

It is indeed wonderful new world that the Court creates, one promise full of professors administrative-law in need of tenure articles and, of adhere to what has been the litigators.14 course, for I would past: rule in the When a court interprets a statute without Chevron agency deference to (whether views, its interpretation or not asserted to rest upon text) an unambiguous is the might I law. add that it great is a mystery why any of this is relevant here. What- ever the stare decisis effect of Corp. AT&T v. Portland, 216 (CA9 F. 3d 2000), in the Ninth surely Circuit, it does govern this Court’s decision. despite the Court’s And— peculiar, self-abnegating suggestion contrary, ante, at 985-986—the Ninth Circuit already would obliged be

14Further deossification may already be on the way, as the Court has hinted that an agency construction unworthy of Chevron deference may be able trump one of our statutory-construction holdings. In Edelman v. Lynchburg College, 585 U. 106, 114 S. (2002), the Court found “no need to resolve any question of deference” because Equal Employment Op portunity Commission’s rule position was “the we would adopt even if... we were interpreting the statute from scratch.” It nevertheless refused to say whether the agency’s ‍‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌‍position was only “the Id., permissible.” one (internal n. 8 quotation omitted). marks Justice ap O’Connok propriately “doubt[ed] that it is possible to reserve” the question whether a regulation is entitled to Chevron deference “while simultaneously maintaining... that the agency is free to change its interpretation” in the future. S., 535 U. at 122 (opinion concurring in judgment). In response, the Court cryptically only said that “not all deference is deference under Id., Chevron.” n. 8. holding Portland’s

abandon in the face of this Court’s deci- sion that the Commission’sconstruction of “telecommunica- tions service” is entitled to deference and is reasonable. It go is a sadness that the way Court should far so out of its make bad law. respectfully

I dissent.

Case Details

Case Name: National Cable & Telecommunications Assn. v. Brand X Internet Services

Court Name: Supreme Court of the United States

Date Published: Jun 27, 2005

Citation: 545 U.S. 967

Docket Number: 04-277

Court Abbreviation: SCOTUS